Migration, Citizenship, and Free Movement

In Hideous Darkness: The UK Policy of Detaining and Expelling EU Citizens

Introduction

The detention and expulsion of EU Citizens from the UK is a developing trend; one that ought to concern not just EU Citizens and their family members in the UK but anyone who considers that the UK ought to respect international treaty obligations into which it has entered in exercise of its sovereign power. The Home Office policy and practice as regards the detention and expulsion of EU Citizens displays scant regard for the EU Treaties, for the need to give effect to their object and purpose, or for the rights that arise under them. It empties the content out of EU Citizenship and of rights of free movement, by militating against both and confining them in an over-determined system of immigration control. In so doing it reduces their broad, liberal character, to a few grudgingly conceded benefits fenced in by procedural hurdles whose very existence on the face of UK legislation seems contrary to EU law.

The Trend

In 2015 3,699 EU citizens were detained under UK immigration powers, an increase of over 500% from the 768 detained in 2010. In 2015 EU citizens formed 11.4% of detainees; in 2010 it was 2.7%. The third quarter of 2016 saw further evidence of a developing upward trend as 1,227 EU Citizens were detained, amounting to 17% of all news detentions. In the same quarter 1,000 EU Citizens were removed from the UK, amounting to 31% of all enforced removals (source: Bail for Immigration Detainees).

What’s Going On?

As is well known, EU Citizens have free movement rights that perforate the immigration control otherwise exercised by an EU member state. EU Citizens and their family members enjoy rights of free movement in the UK under the EU Treaties, EU Directive 2004/38/EC and – as a matter of UK law – under the European Communities Act 1972, the Immigration Act 1988 and the Immigration (European Economic Area) Regulations 2016. In contrast other persons seeking to enter and reside in the UK are subject to the control imposed by the UK Immigration Acts and the UK Immigration Rules.

EU Citizens and their family members enjoy the right of admission to the UK and thereafter, rights of residence that arise by operation of law on satisfaction of prescribed conditions. A right of permanent residence may be acquired after a period of continuous residence in the UK, usually five years although a shorter period suffices in particular cases. As a general rule EU Citizens do not require permission from the UK Home Office in order to exercise their rights, though they may opt to vindicate their position by applying for Home Office residence documentation. In contrast other persons require the UK Home Office to grant permission to enter and reside in the UK and for them possession of immigration documentation (visas, entry clearance certificates, residence permits, etc.) is mandatory.

EU Citizens have the right to be admitted to the UK for an initial period, to seek work, and to reside as workers, self-employed persons, students, or as persons who are self-sufficient. Buttressing these rights are provisions for rights for family members, as well as for retained rights of residence (on death, divorce or departure of the principal EU Citizen family member), and rights derived from the need to render effective the rights of others. The passports of EU Citizens are not endorsed or stamped when they are admitted to the UK and, absent any claim for social assistance from the state, UK authorities evince a want of interest in EU Citizens’ presence. Where not exercising a right of residence, it has always been the case that an EU Citizen is liable to administrative removal from the UK and to detention for removal purposes, however until recently such power was rarely exercised. Lamentably, that is not longer so and the power is exercised more frequently.

While a French citizen happily ensconced on a park bench in Kensington, reading Le Monde, need not concern herself that the policeman walking past her might stop to enquire as to the lawfulness of her presence in the UK, the position of the Polish construction worker who loses his insecure accommodation and is compelled to sleep rough, while searching for a room to rent or a sofa to sleep on, is much more precarious. There is a stronger chance that he will be detained and thereafter removed from the UK.

The Problem Illustrated

In recent years the Home Office has developed a taste for detaining rough-sleeping EU Citizens and removing them from the UK. Instead of starting from the assumption that they are citizens of a common European home entitled to be in the UK, and that to survive they must be working, self-employed, seeking work or be the family member of such a person so occupied, the Home Office has proceeded to detain then and to administratively remove them, notwithstanding that they have neither sought access to social assistance nor reached the public policy threshold risk to the public so as to warrant being deported (where deportation carries an automatic ban on re-entry). The EU Citizens who have been targeted have tended to be from Poland, the Baltic States, and other formerly Communist states that joined the EU in 2004 and 2007.

Instead of treating homeless EU Citizens as persons who may require help, accommodation, community care and a hand up to get back on their feet, a Home Office policy and practice of detaining them and seeking to return them to their home countries has evolved. Many such EU Citizens are single men who have sought work in insecure sectors such as the building trades, hospitality, or catering. They are men for whom the reality of migrating to the UK has brought hardship, low levels of pay, and connected social problems. Another class of EU Citizens exposed to detention and removal are women who have been trafficked to the UK for the purposes of sexual exploitation.

The Home Office policy and practice of seeking to detain and remove EU Citizens has led it to override rights arising under EU law in a way that treats EU Citizens as if they were third-country nationals (from states outside the EU). A case in the High Court in London, R(Kondrak) v The Secretary of State for the Home Department [2015] EWHC 639 (Admin), concerning a claim for the unlawful detention of a Polish citizen, illustrates well how rights arising under EU law are overridden by the Home Office, only for those same rights to bite back and to form the foundation of a claim for unlawful detention and a substantial award of damages.

Mr Kondrak had been in and out of work while in the UK. When not working he had been seeking work. From time to time he found himself without a roof over his head. As a result of an encounter with the police when he was sleeping rough, he became the target of Home Office attempts to remove him to Poland. He was detained under immigration powers for over five months without any steps being taken to remove him to Poland. Eventually he was released but even then he was made subject to a grant of temporary release prohibiting him from work.

His prolonged detention, and prohibition from work on release, prevented him from exercising EU Treaty rights to seek work and to take work. The Home Office wished to remove him as a person who was neither working nor seeking work. However its very action in controlling him in order to expel him manufactured the situation where he was unable to do either of these things, despite having EU Treaty rights to do so.

The High Court held that Mr Kondrak had been unlawfully detained and the Home Office conceded that the restriction on work on release had been unlawful. It mattered not that he had not been wholly co-operative when first encountered by the police nor that he had not exercised a right of appeal to an immigration tribunal against the immigration decision to remove him. What was of significance were the actions of the Home Office in frustrating his exercise of EU rights of residence. Further, under the applicable Home Office policy, EU Citizens were only to be detained for removal when removal was immanent, that is when the person needed to be taken to the airport following the service of removal directions. That policy recognised the need to tread carefully where EU Treaty rights were in issue.

On the facts of the case there were Home Office failures to follow other aspects of its policy, including the provision made for regular reviews of detention. Moreover, while in detention Mr Kondrak had not been given ready access to legal advice so he could apply to secure his release. During much of the period of his detention he had simply been forgotten.

Mr Kondrak relied on Articles 20 and 21 of the Treaty on the Functioning of the European Union (‘TFEU’) providing for EU Citizenship for nationals of EU member states and conferring rights of free movement around the EU, as well as on Articles 45 and 49 TFEU providing respectively the right to take up employment and to be self-employed in a host EU member state.

Mr Kondrak had been unlawfully detained from the outset. The Home Office knew he did not have an ID card or passport and, further, that removal was not immanent in the sense that specific removal directions had been set so that detention was necessary to take him to the airport to remove him.

During the hearing and based on evidence disclosed, it became clear that the Home Office did not consider it could detain Mr Kondrak for more than a week, in order to effect removal, without infringing his EU Treaty Rights. The Court found that it would have been reasonable to detain Mr Kondrak for a maximum of a week to effect removal; a finding that is very useful for future cases where the Home Office seek to remove (as opposed to deport) an EU citizen. As a result of being unlawfully detained Mr Kondrak was awarded damages.

The case highlights the point that EU Citizens are better placed to resist detention for the purposes of administrative removal from the UK than third country nationals (without a connection to EU law), as EU Citizens can invoke rights of free movement arising under the EU Treaties. The judgment reinforces the point that detention of EU Citizens for removal must be kept to a relatively brief period of time, otherwise EU law may be infringed and detention may be unlawful. The award of damages served to vindicate the Mr Kondrak’s position and to remind the Home Office that there is a cost to treating EU Citizens in this way.

Not Just Homeless Persons

It is not just homeless EU Citizens who are at risk of detention and expulsion, other EU Citizens leading lives in precarious circumstances in the UK are vulnerable to the same risk, where unable to prove with ease that they have a right to reside. Among them are those whose documents are incomplete or which have gone astray, family members estranged from their principal EU Citizen family member, the otherwise self-sufficient who lack comprehensive sickness insurance, and the small-scale self-employed trader or service provider (such as a cleaner) without well-ordered records of her business.

Egregious examples of Home Office policy abound. In Lauzikas v Secretary of State for the Home Department [2016] EWHC 3215 (Admin), a Lithuanian citizen was detained as a prelude to deportation, having served a custodial sentence. On his release from detention and pending resolution of his legal challenge against deportation, he was prohibited from work and forced to bring collateral proceedings to challenge that restriction.

In R(Santos) v Secretary of State for the Home Department [2016] EWHC 609 (Admin) a Brazilian national family member of a Portuguese citizen suffered unlawful immigration detention as a prelude to his expulsion, following the Secretary of State’s unlawful failure to issue him with a residence card. The High Court found that Mr Santos had been falsely imprisoned for six months and awarded £136,048 by way of damages, or which £59,470 was expressly for the breach of EU law.

In R(Imafidon) v Secretary of State [2015] EWHC 1790 (Admin) a Nigerian national family member of a German citizen was detained under immigration powers following the Secretary of State’s refusal of a permanent residence card; it was held that he was unlawfully detained from the point he proved he had acquired the right of permanent residence, as from that point he could not lawfully be removed from the United Kingdom.

Rule Making

The Home Office policy and practice of removing EU Citizens and their family members, simply for not exercising EU rights of residence, faced a practical obstacle in that administrative removal, as compared to deportation, does not by itself impose a ban on re-entry to the UK. An EU Citizen administratively removed from the UK is free to return to the UK the same day and exercise her right of admission on arrival.

Cognisant of the position, the Home Office introduced measures, which may be found in regulation 26 the Immigration (European Economic Area) Regulations 2016, to characterise a return to the UK within a 12-month period of removal as a misuse of rights. Where the Secretary of State has reasonable grounds to suspect a misuse of an EU right to reside and where it is proportionate to do so, she may refuse admission to the UK. On return to the UK, an EU Citizen previously removed is not considered to have a right of admission and an initial right of residence for up to three months but must provide evidence that she is a job-seeker, worker, self-employed person, etc. in order to be admitted to the UK.

For the Home Office a misuse of rights occurs even where the requirement of the Regulations are met but in circumstances where, it is said, that their purpose is not met and, it is said, that the person concerned intends to obtain an advantage through conduct artificially creating the conditions necessary to satisfy the criteria. In such a way are rights embodied in treaties rubbed away by legislative fiat. Regulation 26 is a measure replete with arbitrary and subjective moments of evaluative assessment that subvert and undermine plainly expressed rights conferred under EU law on EU Citizens (and other European Economic Area nationals) and their family members. In spirit it is BREXIT avant la lettre.

Conclusion

The Home Office policy and practice demonstrates a failure, conscious or otherwise, to grasp that EU Citizenship and its attendant rights of free movement serve to create a common European home across the European Union (though subject to different levels of entitlement to social assistance in each state), whereby a national of one member state may move to and reside in another member state, for short or long periods, as part of the ordinary incidence of her life. By treating such rights as narrowly drawn immigration entitlements and by introducing policies and practices seemingly incompatible with EU law, it has put the UK in the position of breaching international treaty obligations. Locking up EU Citizens for months and months, on flimsy pretexts, and seeking to expel them is base, unworthy, conduct. Were British citizens resident elsewhere in the EU, maybe retired in Spain, working in France, or studying in the Netherlands, treated similarly, such cruelty would be the subject of alarm and concern. The United Kingdom should treat its neighbours’ citizens as it would expect its own citizens to be treated.